Rethinking the Legal Protection of the Human Right to Land for Women in Africa
DOI:
https://doi.org/10.47604/ijgs.3800Keywords:
Property, Land, Equality, Nondiscrimination, Gender, Human Rights, Affirmative Action, African Customary LawAbstract
Purpose: Land has always, particularly in Africa, been regarded as one of the most important forms of property, and for that reason, it is rigorously sought by those without it and jealously guarded by those who own it. This attitude towards its importance makes it a scarce resource in terms of accessibility and affordability for those who might be in many other aspects at an economic disadvantage. Women are among those who suffer this disadvantage.
Methodology: The methodology adopted is the doctrinal analytical approach. This is achieved through thorough inquiry in legal concepts, values, principles and existing legal texts such as international instruments particularly the international human rights instruments, statutes, case laws, opinions of publicists among others.
Findings: The deleterious effects of legal pluralism exacerbated by recognition and application of the African traditional law and Islamic law with regard to the property rights and particularly land in Africa in the modern-day have been discussed. Ossified legislations and traditional customary practices dubbed African customary laws, continue to legalise gender inequality until presented to formal justice system whence they are declared unconstitutional and invalid by the courts. Therefore, many a times when formal justice is inaccessible through the formal courts, the discriminatory laws carry the day. However, the tacit recognition of discriminatory laws and their entrenchment through national constitutions provide a situation where the choice of the applicable law affect the outcome of a matter.
Unique Contribution to Theory, Practice and Policy: African customs and practices on marriage, divorce and inheritance impact more disproportionately on rural women and on married women. This makes it necessary to not only have laws addressing intersectional discrimination but also have laws that do not address it interpreted and applied in a manner that addresses the intersecting statuses in order to eliminate all forms of discrimination against women in relation to the right to land.
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Copyright (c) 2026 Sr. Dr. Teresiah Muthoni (Dr. Jur)
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